RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2008-01114
INDEX CODE: 111.02
XXXXXXX COUNSEL: NONE
HEARING DESIRED: NOT INDICATED
________________________________________________________________
APPLICANT REQUESTS THAT:
His dishonorable discharge be upgraded.
________________________________________________________________
APPLICANT CONTENDS THAT:
Applicant’s makes no contentions.
His complete submission is at Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
The applicant enlisted in the Regular Air Force on 8 March 1972.
From 13 to 16 February 1973 he was tried before a General Court-Martial at
Carswell AFB, Texas. He was convicted of one specification of aggravated
assault, in violation of Article 128, Assault, Uniform Code of Military
Justice (UCMJ); two specifications of indecent assault, in violation of
Article 134, General Article, UCMJ; one specification of attempted rape, in
violation of Article 80, Attempts, UCMJ; and one specification of attempted
sodomy, in violation of Article 80.
The court imposed a sentence of a dishonorable discharge, forfeiture of all
pay and allowances, confinement at hard labor for 20 years, and reduction
to the grade of airman basic. The sentence was later remitted to
confinement for 18 years and 6 months by the Clemency and Parole board.
The applicant served 7 months on active duty.
On 11 August 2008, a request for information pertaining to his post-service
activities was forwarded to the applicant for response within 30 days. As
of this date, no response has been received by this office (Exhibit C).
________________________________________________________________
AIR FORCE EVALUATION:
AFLOA/JAJM recommends denial. JAJM states the applicant has identified no
error or injustice related to his prosecution of the sentence. While
clemency may be granted, it is not warranted in this case. He was
convicted of several very serious crimes of a violent and sexual nature.
Evidence presented at trial revealed he and the victim were involved in an
altercation on 7 October 1972. While driving that day, the victim picked
him up to provide a ride. During this period, he held the victim against
her will in her car while he continually threaten, stabbed, assaulted and
attempted to rape and sodomize her. The attack left the victim with blood
loss and a collapsed lung that needed immediate medical treatment. She was
treated in the hospital for these injuries. During trial, defense counsel
unsuccessfully attempted to show he was not the perpetrator. This argument
was rejected by the jury because the overwhelming bulk of the evidence
pointed to the contrary. While serving his confinement, his repeated
request for clemency and parole were denied time and time again by fully
informed review boards, noting his consistent poor attitude and discipline.
As a result of his behavior, he was moved to new prisons several times
during his incarceration. Having given due consideration to the
seriousness of the offenses, mitigating, extenuating and clemency matters,
the application is untimely and there is no basis for upgrading the
dishonorable discharge.
The complete JAJM evaluation, with attachments, is at Exhibit D.
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 25
July 2008 for review and comment within 30 days. As of this date, this
office has received no response (Exhibit E).
________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing law or
regulations.
2. The application was not timely filed; however, it is in the interest of
justice to excuse the failure to timely file.
3. Insufficient relevant evidence has been presented to demonstrate the
existence of an error or injustice. We took notice of the applicant’s
complete submission in judging the merits of the case. However, after
thorough review of the evidence of record, it is our opinion that the
comments of the office of the Judge Advocate are supported by the evidence
of record. We find no evidence of error in this case and after thoroughly
reviewing the applicant’s submission, we do not believe he has suffered
from an injustice. We considered upgrading his discharge on the basis of
clemency; however, due to the serious nature of the offenses committed, in
the short period of time in which he served, we believe that the
characterization of his discharge was proper and in compliance with the
appropriate directives. In the absence of persuasive evidence to the
contrary, we find no basis upon which to favorably consider this
application.
________________________________________________________________
RECOMMENDATION OF THE BOARD:
The applicant be notified that the evidence presented did not demonstrate
the existence of error or injustice; that the application was denied
without a personal appearance; and that the application will only be
reconsidered upon the submission of newly discovered relevant evidence not
considered with this application.
________________________________________________________________
The following members of the Board considered BC-2008-01114 in Executive
Session on 24 September 2008 under the provisions of AFI 36-2603:
Ms. Charlene M. Bradley, Panel Chair
Mr. Kurt R. LaFrance, Member
Ms. Debra K. Walker, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 14 March 2008.
Exhibit B. Master Military Personnel Records.
Exhibit C. Letter, AFBCMR, dated 11 August 2008, w/atch.
Exhibit D. Letter, AFLOA/JAJM, dated 4 June 2008, w/atchs.
Exhibit E. Letter, SAF/MRBR, dated 25 July 2008.
CHARLENE M. BRADLEY
Panel Chair
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